Who will watch the watchmen? A reply to Lord Carnwath and Philippe Sands QC on climate change and the law

Guest essay by Christopher Monckton of Brenchley. | The Denning Lecture in the Church of St Dunstan, “the Cathedral of the Weald”, Cranbrook, Kent | 23 October 2015.

LORD DENNING, now merry in heaven, is celebrated for many qualities, not least his readiness to take on the legal establishment in what he rightly saw as the overriding interest of reaching a just judgment. In that gentle Hampshire accent from the ancient village of Whitchurch, where he lived in a fine, stone-built house overlooking the church, he would raise a finger and a smile and reply to those who asked him how it felt to be overturned so frequently on points of law by the House of Lords:

“Oi took no oath to do law. Oi took it to do justice. They did law. Oi did justice.”

In honouring that great Custos Rotulorum today, we need only look towards the Supreme Court of the United Kingdom to realize how sorely we need good judges and true – men of Lord Denning’s singular stamp. For he was the redoubtable champion of the little guy against big business, big unions, big bureaucracy, big government. For this reason, though he was regarded with stuffy exasperation in the stuffier chambers of the stuffiest of professions, he was arguably the most popular, influential and well-loved justice of our time among the general public.

His Lordship’s judgments richly deserve to be regarded as works of literature no less than of law. His principle in drafting his opinions was simple: “Accuracy, brevity, clarity, aboideth these three, and the greatest of these is clarity.” His sentences were famously short and simple. His lines of argument were forceful, straightforward, comprehensible and clear. He flattered all the non-legal minds into whose purview his judgments came, for he gave us the impression that we, too, could almost understand the law, and perhaps even love it a little, as so many of us loved him. Above all, he was by instinct always ready to defend the ordinary citizen against the over-mighty forces of intrusive government, citing Pitt the Elder but adding his own characteristic rider (italicized):

“‘The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail. Its roof may shake. The wind may blow through it. The storm may enter. The rain may enter. But the King of England cannot enter. All his force dares not cross the threshold of the ruined tenement.’ So be it – unless he has justification by law.”[1]

A dismal contrast to the splendid readiness of the late Master of the Rolls to keep the panjandrum of totalitarianism from bursting in upon us and rolling over us was visible at the recently self-aggrandized Supreme Court of the United Kingdom in mid-September 2015, where a strangetheatrical event took place: a conference of national and international judges and law professors under the troubling title Climate change and the rule of law.

Lord Carnwath, a Justice of the Court and a tendentious campaigner on environmental and climate issues, introduced the conference with these shamelessly partisan sentiments:

“President Obama has said we are the first generation to feel the impact of climate change and the last generation that can do something about it. On that basis, the forthcoming Paris negotiations under the UN Climate Change Convention are a crucial test of our ability as a global community to address those challenges.

“The intention is that the commitments which emerge from those negotiations should have legal force. But what does that mean in practice? Much has been written about the science and the politics, but much less about the legal machinery available to give effect to those commitments, which will need to be developed in the future – or, indeed, the role of the courts, national or international, in administering it.

“Ultimately it will be for us as judges, national or international, to work it out with the help of legal practitioners and academics. We need to prepare ourselves for that task and to help our judicial colleagues round the world to do the same. The purpose of this conference is to stimulate such a debate, which I hope will continue up to Paris and beyond.”

In short, His Lordship is more than eager for the courts to be empowered to inflict totalitarian regulations and restrictions on the people worldwide, in the name of “addressing … challenges” whose genuineness he injudiciously and unjudicially assumes without verification and without first having taken the trouble to hear both sides in evidence.

Carnwath should urgently reread Lord Denning’s words in a celebrated judgment, explaining why the judiciary must be, and be seen to be, impartial:

“The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’ … The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.”[2]

Carnwath introduced a lecture by Philippe Sands QC, professor of international law at University College, London, on Adjudicating the future in international law. Sands, like Carnwath, accepted without question the establishment position on the climate. The very title of his talk betrayed the relentless and often pusillanimous prejudice that was evident throughout. “Adjudicating the future”, forsooth!

The aprioristic premise of Carnwath, Sands and just about all of their no doubt carefully-chosen audience was that everything in the sacred texts of the Intergovernmental Panel on Climate Change was unquestionably gospel truth.

Sands and other speakers at the conference took the view that it was the duty of the international courts to reach findings of fact in support of the IPCC, and, in Sands’ profoundly prejudice-laden word, to “scotch” the research results of researchers who challenge the “factual matters” on which those attending the conference seemed unanimously to agree without the slightest evidence or question, even where those researchers were “scientifically qualified, knowledgeable and influential persons”.

That conference of very senior national and international judges was in reality a nest of activists ruthlessly determined not merely to disregard but openly to flout the two principles of natural justice recognized in the laws of England and Wales: that none should be the judge in his own cause (nemo sit iudex in causa sua), and that both sides should be fairly heard (audiatur et altera pars).

Here is a characteristically unsatisfactory passage from Sands’ talk:

“The International Court of Justice or International Tribunal on the Law of the Sea could be asked, for example, to confirm (as a scientific matter) that emissions reductions are needed – nationally and globally – to stay below the globally agreed temperature threshold of 2 degrees Celsius.

“As I noted at the outset, there is a broad emerging consensus on many of these factual matters, but they remain subject to challenge in some quarters, including by scientifically qualified, knowledgeable and influential individuals, and the courts could play a role here in finally scotching those claims.”

The words in bold type were not in Sands’ script. He added them on the fly. It is often inad-libs of this kind that the true (and, in the present instance, frankly malevolent) intent of the speaker is revealed. The conference of judges, in defiance of the English tradition of hearing both sides before making any pronouncement, had made up their minds ab initio and a priori.

They are indeed judges in their own cause – the cause of mawkish, half-baked, anti-science, to-hell-with-the-evidence, hard-Left environmentalism that is so dear to our future King, who sent these pecksniff propagandists a dim-witted letter of support and has likewise refused either to appreciate or to respect the iron constitutional obligation upon him, akin to that which rests upon the Justices and the courts, to keep what the Greeks called “holy silence” on all matters of current political contention.

Worse, the disgraceful but revealing ad-lib perpetrated by the unfortunate Sands evinces a determination not to give any hearing to those who have published in the learned journals their scientific results casting doubt on the apocalyptic claims of the profiteers of doom before “finally scotching” what he calls the scientific sceptics’ “claims”.

Lord Denning’s opinion on the obligation of visible impartiality in the judiciary has already been cited. Let us cite him now on the audiatur et altera pars principle:

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict them.”[3]

And what steps did Carnwath or Sands take to suggest that the courts should hear both sides before reaching any scientific findings? Precisely none. Those of us who have researched these questions deeply, and who have published our findings in the learned journals, are not to be invited to present any evidence, any more than they were fairly represented (if at all) at the justices’ unbecoming political rally. To make the point clear that only one side of the scientific case will be permitted, Sands said this of the International Court of Justice:

“… the court has a potentially significant role to play in helping the world understand and decide on the science of climate change and to recognize that the room for real doubt has disappeared.”

This time the emboldened words of incurable but no doubt profitable prejudice are in the printed text of Sands’ insubstantial lecture.

The prejudice expressed both by Carnwath in citing Mr Obama with approval and by Mr Sands in his menaces to independent scientific researchers, combined with the unquestioning enthusiasm with which the audience of personages whom Lenin would have characterized as “useful” received those remarks, raises a question without precedent in the annals of British justice. Not merely one judge but an entire court, at a partisan political event bought and paid for by Her Majesty’s Government, by a rent-seeking university law department also profiting by the taxpayer’s involuntary generosity, by a foreign agency to which Lord Carnwath acknowledges allegiance and by an alien bank that profits from substantial investments in coal-fired power stations, an event held not merely within the precincts of the court but in two of its courtrooms, not behind closed doors but across the internet, have publicly disseminated an unreasoning collective prejudice on a matter of current political controversy that may yet well end up in court, if only to bring to book the profiteering pseudo-scientific scamsters who have stretched the evidence for supposed concern about our largely imaginary influence on the climate beyond all reason, and have even tampered with that evidence.

UKIP, which received one vote in eight at the last general election, opposes the climate scam root and branch for what it is – an international racket got up by the governing class as a Trojan horse for the introduction of global, unelected, totalitarian government. UKIP’s climate spokesman, Roger Helmer MEP, is far more knowledgeable about climate science and economics than Carnwath or Sands will ever be. They cannot fairly claim, then, that the climate question is settled politically, any more than they can legitimately claim that it is settled scientifically. Even if the classe politique were united on the climate question, which it is not, the judges have no locus to join forces with them politically.

The entire Supreme Court, now that it has taken money from the Government and other inappropriate sources, and has unlawfully misapplied those funds for the purpose of proclaiming very publicly an irremediable prejudice on a political question on which opinion as well within as among the parties is divided, must henceforth recuse itself from hearing any cases concerning the environment and climate. At once an obvious difficulty arises. For the Supreme Court is the ultimate court to which the appeal courts refer contentious cases of all kinds, including climate and environment cases. It construes its own role as follows:

“The Supreme Court is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland; hears appeals on arguable points of law of general public importance; concentrates on cases of the greatest public and constitutional importance; [and] maintains and develops the role of the highest court in the United Kingdom as a leader in the common-law world.”[4]

Lord Carnwath and the president of the Court, Lord Neuberger, now face two choices. They must either hold another public event at which they hear – and are seen to hear – the sceptical case, or give written undertakings that the Court will forthwith recuse itself from hearing any future environment or climate cases. If the Court, bending to the fitful wind of transient political fashion, insists on continuing to close its ears to the sceptical case, it must without further ado invite the grim Ministry of Justice (O for the kindlier days of the Lord Chancellor’s Department!) to bring forward urgently whatever legislation may be necessary to make alternative arrangements for hearing final appeals in environment and climate cases.

Either way, the Court must disclose, under the Freedom of Information Act, the sums it received from each sponsor of its unlawful political event, and declare which department or departments of government paid for the conference. It will no doubt seek to maintain that its workings are exempt from FOIA requests. However, its workings are not in issue. What is in issue is the funding for a partisan and public political event held by it on its premises.